TMI Blog2015 (1) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... s agricultural land and there is nothing on record to suggest that agricultural land sold was ‘capital asset’ within the meaning of Section 2(14) and hence liable to capital gains. Thus CIT(A) was justified in deleting addition in question - Decided in favour of assessee. - ITA. No. 1878/Ahd/2012, C.O. No. 199/Ahd/2012 ITA. No. 1892/Ahd/2012 C.O. No. 200/Ahd/2012 ITA. No. 1893/Ahd/2012 C.O. No. 201/Ahd/2012 ITA. No. 1894/Ahd/2012 C.O. No. 202/Ahd/2012 ITA. No. 1895/Ahd/2012 C.O. No. 203/Ahd/2012 - - - Dated:- 31-12-2014 - Shri Shailendra Kumar Yadav And Shri Anil Chaturvedi,JJ. For the Petitioner : Shri Roop Chand, Sr. D.R. For the Respondent : Shri U. S. Bhati, A.R. ORDER Per Shailendra Kumar Yadav, J.M: Since, all these Revenues appeals and assessees Cross Objections are arising out from the orders of CIT(A)-XX, Ahmedabad, dated 01.06.2012, so they are being disposed of by common order for sake of convenience. 2. In ITA No. 1878/Ahd/2012, Revenue has filed the appeal on the following grounds: 1). The Ld. Commissioner of Income-Tax (Appeals)-XX, Ahmadabad has erred in law and on facts in deleting the addition of ₹ 17,82,750/- made on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s absolutely no word about the disclosure made by Shri. Mavjibhai M. Desai. The details Of that disclosure are also not available. It would also be evident from the Statement of Shri. Mavjibhai M. Desai that he had various transactions in land in respect of which he had received Commission in the capacity of a Commission Agent. For your kind information, we are reproducing below the question and answer number 18 of the statement of Shri Mavjibhai M Desai dated 29/03/2007. Q.18. We are Showing you page No. 26 of Annexure A-5, and also the bacK side of this very page, which was seized from your Office at Sargam Complex. Please explain the accounts written on this page? Ans. The noting on page No. 26 and it's back side is in respect of a land at Tharad. There are other notings on back side of page No. 28, so also on page No. 29 in respect of land at Tharad, which was purchased for a consideration of 74 to 75 lakhs. There are 4 partners in this land and the registered document was made for ₹ 20 lakhs. The details of partners in the said land are given as under:- (1) Mavjibhai M. Desai.- Self 25% share (2) Sheth Jitendrakumar Shantilal, 25% share Chandralok Soci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has already been brought to your kind notice in the submissions in each of these cases. Therefore, the same is not repeated here. (6) There is passing remark in the Statement of Shri. Mavjibhai M. Desai in respect of S.No. 191 192 which was staled to be Purchased by Smt. Antarba V. Vaghela, Pravinsinhji V. Vaghela Late Shri Midhusinhji V. Vaghela but there is no mention of the names of the original owners of this land at S.No. 191 192. Even the Statement of Shri Jitendra S. Sheth was not recorded at all. (7) We have already pointed out at various places that although each one of the appellants had requested the A.O. to grant him an opportunity to cross-examine Shri. Mavjibhai M. Desai, as early as June, 2011, while communicating their objections to the action initiated u/s 147 of the Act in their cases, the A.O. did not accede to that request till December, 2011, when the Assessment was to get barred by limitations. This fact is rather relevant in so far as the initiation of the proceedings u/s 147 of the Act in each of these cases, particularly when there was absolutely no evidence against any one of them in the form of seized material, seized from the premises of Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of property in question. The stand of assessee has been that free English translation of the statement of Shri Mavjibhai and certified copy of the assessment order in his case were being enclosed. According to which, it was submitted that Shri Mavjibhai did not make any disclosure of the on money in question; in his statement only question on the issue was question and answer No.18; nowhere in the documents referred to in the said question there was any mention of on money payment; his statement was not supported by any documentary evidence. According to Assessing Officer, assessee was present on the dates of cross examination i.e. 05-12-2011 and 09-12-2011, but Shri Mavjibhai did not appear on those dates and since there was no evidence supporting payment of on money was not justified according to assessee. In this background, CIT(A) observed that only basis on which impugned addition was made was answer No. 18 of the statement recorded from Shri Mavjibhai on 29.03.2007. Said Mavjibhai was not even clear on the exact quantum of the consideration. From his reply, it was found that total consideration was ₹ 74 or ₹ 75 lakhs. This statement was not supported by any ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due procedure of law while reopening the assessment. 2.0 The Ld. Commissioner of Income-tax (Appeals) further erred in law and on facts in dismissing following Ground No. 2 raised before him: The ld. A.O. further erred in law and on facts in completing the assessment u/s 143(3) r.w.s.147, without disposing of the objections raised by the appellant to the initiation of the proceedings u/s 147 of the Act, before proceeding further and completing the assessment hastily without affording fair and reasonable opportunity to the appellant although he has asked for an opportunity to cross-examine Shri Mavjibhai Desai, on the basis of whose statement, this action u/s 147 of the Act was initiated by the A.O. as per the reasons recorded u/s 148(2) of the Act. 7. Assessing Officer made addition of ₹ 24,52,765/- after reopening the case of ₹ 24,52,765/- on account of undisclosed income from land transaction, which were deleted by CIT(A). Same has been opposed before us inter alia stating that CIT(A) was not justified in deleting addition of ₹ 24,52,765/- made on account of undisclosed income from land transaction. Accordingly, order of CIT(A) be set aside and that o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 2) On the facts and in the circumstances of the case, the Ld. Commissioner of Income-Tax (Appeals)-XX, Ahmadabad ought to have upheld the order of the Assessing Officer. 3) It is therefore, prayed that the order of the Ld. Commissioner of Income-Tax (Appeals) - XX, Ahmadabad may be set-aside and that of the Assessing Officer be restored. 10.1 In Cross Objection No. 201/Ahd/2012, assessee has filed the appeal on the following grounds: 1.0 The Ld. Commissioner of Income-tax (Appeals) erred in law and on facts in upholding the action of the ld. A.O. in initiating proceedings under section 147 of the Income Tax Act, 1961 despite the fact that there was no material before the ld. A.O. to arrive at reasonable belief for escapement of income. He has further erred in law and on facts in concluding that the ld. A.O. observed due procedure of law while reopening the assessment. 2.0 The Ld. Commissioner of Income-tax (Appeals) further erred in law and on facts in dismissing following Ground No. 2 raised before him: The ld. A.O. further erred in law and on facts in completing the assessment u/s 143(3) r.w.s.147, without disposing of the objections raised by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.O. further erred in law and on facts in completing the assessment u/s 143(3) r.w.s.147, without disposing of the objections raised by the appellant to the initiation of the proceedings u/s 147 of the Act, before proceeding further and completing the assessment hastily without affording fair and reasonable opportunity to the appellant although he has asked for an opportunity to cross-examine Shri Mavjibhai Desai, on the basis of whose statement, this action u/s 147 of the Act was initiated by the A.O. as per the reasons recorded u/s 148(2) of the Act. 14. Assessing Officer made addition of ₹ 10,90,000/- after reopening the matter, which was carried before the First Appellate Authority who has deleted the addition in question. Same has been opposed before us on behalf of Revenue inter alia stating that CIT(A) was not justified in deleting addition in question. Accordingly, same should be set aside and that of Assessing Officer be restored. On other hand, ld. Authorized Representative supported the order of CIT(A). 14.1 After going through rival submissions and material on record, we find that Assessing Officer had received information from Central Circle; according to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ross Objection goes academic. So, same is dismissed being academic in light of our finding on merit in Revenue s appeal as discussed above. However, assessee is at liberty to raise the same as and when situation arises for the same. 15. As a result, Revenue s appeal as well as assessee s Cross Objection are dismissed as discussed above. 16. In ITA No. 1894/Ahd/2012, Revenue has filed the appeal on the following grounds: 1). The Ld. Commissioner of Income-Tax (Appeals)-XX, Ahmadabad has erred in law and on facts in deleting the addition of ₹ 22,43,765/- made on account of undisclosed income on the land transaction. 2) On the facts and in the circumstances of the case, the Ld. Commissioner of Income-Tax (Appeals)-XX, Ahmadabad ought to have upheld the order of the Assessing Officer. 3) It is therefore, prayed that the order of the Ld. Commissioner of Income-Tax (Appeals) - XX, Ahmadabad may be set-aside and that of the Assessing Officer be restored. 16.1 In Cross Objection No. 202/Ahd/2012, assessee has filed the appeal on the following grounds: 1.0 The issue of notice u/s 148 of the Income Tax Act, 1961 was bad in law because it was issued in the name ..... X X X X Extracts X X X X X X X X Extracts X X X X
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